The anti-vaccine movement was, only a few years ago, such a fringe group of cranks that even Donald TrumpDonald TrumpBiden says Roe v. Wade under attack like 'never before' On student loans, Biden doesn't have an answer yet Grill company apologizes after sending meatloaf recipe on same day of rock star's death MORE had to walk back his support for it once he was president. Now it seems to count among its allies at least three of the nine justices of the Supreme Court, who claim they are defending the free exercise of religion. One of America’s preeminent defenders of religious liberty thinks that the Supreme Court is endangering that liberty in the guise of protecting it.
Supreme Court advocate Douglas Laycock helped craft today’s First Amendment law. Yet in the COVID-19 cases, the Court’s conservative majority risks turning the free exercise of religion into something Laycock never imagined: a right to kill people.
Laycock, a professor at the University of Virginia Law School, was the victorious attorney in Church of Lukumi Babalu Aye v. Hialeah (1993), persuading the Supreme Court to invalidate a ban on animal sacrifice. To understand where the law is now, one must understand that decision, and how the Court has abused it.
The Court had previously held that there was no right to religious exemptions from neutral laws. But Laycock showed that this law wasn’t neutral. It targeted an unpopular religion of Caribbean immigrants. The laws, the Court concluded (adopting Laycock’s arguments), were “drafted with care to forbid few killings but those occasioned by animal sacrifice.”
The state said that it had legitimate interest in preventing cruelty to animals. The Court responded that the city “devalues religious reasons for killing by judging them to be of lesser import than nonreligious reasons.” In Hialeah, animals could be killed, sometimes painfully, for all sorts of nonreligious reasons. Live rabbits were used to train greyhounds. The city’s laws, the Court said, “fail to prohibit nonreligious conduct that endangers these interests in a similar or greater degree than Santeria sacrifice does.”
That sentence became the basis of the Court’s recent interventions against state efforts to contain COVID. It invalidated restrictions on church attendance because states allowed larger numbers to gather in grocery stores and other businesses. In Tandon v. Newsom, a 5-4 decision in April against California's order prohibiting more than three households from gathering in homes – an order that made no mention at all of religion – the Court declared that laws can’t be applied to religious groups that want to hold services in homes so long as the state “treats some comparable secular activities more favorably.” The rule, it said, now is that “government regulations are not neutral and generally applicable . . . whenever they treat any comparable secular activity more favorably than religious exercise.”
Laycock agrees with that general proposition of law, but thinks that the Court misapplied it in the cases involving religious services. “They analogized churches to activities where people don’t congregate for long times.” The test, properly applied, requires discernment about what endangers the state’s interest to the same degree as permitting a religious exception. That approach, he has written, should easily permit vaccination requirements in an emergency, and allow carefully crafted restrictions on church attendance.
Over more than a century, courts had universally rejected religious vaccine exemption claims. In October a significant part of the Supreme Court embraced them. Justices Neil GorsuchNeil GorsuchSupreme Court to revisit part of Native American land decision in Oklahoma The Hill's Morning Report - Presented by Facebook - Biden talks, Senate balks Sotomayor, Gorsuch issue statement denying tensions over masks MORE, Clarence ThomasClarence ThomasSupreme Court sides with murder defendant in major evidentiary ruling Supreme Court rejects Trump's bid to shield records from Jan. 6 committee Steve Bannon's Supreme Court? MORE and Samuel AlitoSamuel AlitoSupreme Court sides with murder defendant in major evidentiary ruling Steve Bannon's Supreme Court? Supreme Court seems wary of Boston's refusal to allow flying of Christian flag MORE dissented from a decision not to block Maine’s requirement that health care workers be vaccinated against the coronavirus notwithstanding their religious objections. Because medical exemptions are permitted, they reasoned, religious exemptions must as well — even though medical exemptions have never been vectors of disease, while religious exemptions have already been responsible for measles outbreaks in some states.
There was, in fact, plenty of evidence that religious exemptions are far more dangerous than medical ones, in part because it is so easy to claim them strategically.
The Court’s COVID opinions, Laycock told me, “come close to saying, if there’s any secular exemption, there has to be a religious one.” If religious exemptions from vaccines are in fact required whenever there are medical ones, then the consequences go beyond COVID.
The Centers for Disease Control and Prevention reports that “Nearly 1 to 3 of every 1,000 children who become infected with measles will die from respiratory and neurologic complications.” But a very few people are medically disqualified from the measles vaccine. Does that mean that religious vaccine resistance is now a constitutional right? Human sacrifice was once the reductio ad absurdum of religious liberty, but the Court seems poised to protect it so long as the deaths are statistical and the victims are not identified in advance.
Having spent his career fighting for religious freedom, Laycock worries that the judges who are so keen to defend it are in fact endangering it. “There’s a lot of hostility to the idea of religious freedom in practice, and these claims, especially if they prevail, will make it much worse," he said. "First people claiming religious exemptions were blamed, inaccurately for the most part, for interfering with other people's sex lives. Now they will be blamed, far more accurately, for killing large numbers of Americans.”
The Court's rightwing, he thinks, is in the grip of a narrative in which militant secularists in government are trying to persecute religious conservatives. The narrative is sometimes true. But they overextend it, to situations where nothing like that is actually happening. (It may also be evidence of Long Trump Syndrome, the tendency of his skepticism toward public health to continue to derange the Republican Party.)
The Court is now a major public health menace. It is hard to think of a more effective way to discredit the idea of religious liberty.
Andrew Koppelman, John Paul Stevens Professor of Law at Northwestern University, is the author of “Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed” (St. Martin’s Press, forthcoming). Follow him on Twitter @AndrewKoppelman.